Thinking Before We Act…

Too often I see conservatives and Republicans seemingly running off willy-nilly in what appears to be an attempt to “do something”. These actions often appear to be the product of reaction and sometimes appear to have had no real thought put into the effort.

The latest iteration in this cycle would be SB1070 in Arizona.

As I’m sure you know, the State of Arizona recently enacted a law to basically enforce federal immigration law at the state level. A lawsuit was joined by a bunch of folks including the feds and I’m not addressing the merits of suit here because that’s not what this column is about. The current bottom line though is that a federal judge has blocked key provisions of the law and it is being appealed – to the Ninth Circus – and the appeal won’t be heard until at least November, and then it will likely have to be appealed to SCOTUS, we’re at least a year away from being able to implement SB1070.

With respect to SB1070, for the most part the “offending portions” of the law – asking for proof of legal residency – was pretty much in effect before SB1070 and is still in effect.

· It has been, and still is, a misdemeanor in Arizona to not have a state issued photo ID on your person if requested by a police officer.

· You have to be able to prove legal residency in order to get a state issued ID.

· If you do not have an ID, you can be arrested and detained until your identity is established.

· If you are arrested, when you are booked into any county jail in the state, your immigration status is automatically run.

· If you are not here legally, you are turned over to ICE for processing and deportation.

The above procedure is one of the reasons that roughly 20% of all deportations are generated from Arizona and again, the above procedure has nothing to do with SB1070 or the judicial orders and is still in place.

Now then, with the above in mind, I would offer the following critique of the process of passing SB1070.

First of all, what should have the objective been? I would offer that the objective of passing any immigration related legislation at the state level should NOT be to assume any responsibility for enforcement of federal immigration law. It should be to make the state an inhospitable place for illegal aliens and give them reason to leave this jurisdiction and move to a more friendly place, be it back to Mexico or to California.

Second, what’s the most effective way to accomplish the stated objective? Other than contact with illegals as a result of routine contact with law enforcement personnel in the regular course of their job, I wouldn’t make much effort to find and arrest illegal individuals for just being here illegally. I think it’s an ineffective use of resources and there are better ways to make the state inhospitable. I also thought at the time, and have since been proved right, that SB1070 was a magnet for legal action by every fruitcake (and I include the Obama Administration in that recipe) and that we would spend more time debating and squabbling in court than in removing illegal aliens from our state.

Third, so what to do.

· First, recognize that Arizona has a state law requiring the use of E-Verify in the hiring process, similar to filing an I-9 in an employment file. Current law is very lax and is generally not enforced because the penalties are minimal.

· Upgrade current law with respect to employment. Require an E-Verify form in every employment file prior to hire. Upgrade the current law to make employment of an illegal a felony and upgrade the fine to something like $20,000 per illegal. Write the law such that the felony cannot be reduced to a misdemeanor and make the $20,000 payable by the business and make the owner/local officer/board of directors personally liable. An E-Verify form in the file is an affirmative defense. No E-Verify form, even in the file of employees who are legally entitled to work would be a significant fine, like $5,000 per employee.

· Pass a second law requiring E-Verify for all residents of rental property with penalties noted above.

· Pass a third law requiring proof of legal residence for all immediate family members prior to school registration.

The point of three separate laws is to shortcut the judicial interference. I would expect the third law to be a lawsuit magnet. Note that none of the laws I propose takes any action against the illegal alien, all legal action is taken against the business/property owners. The business portion of the proposal will be especially effective because it doesn’t require much in the way of law enforcement manpower to enforce. A couple of accountants/auditors can have significantly more impact than 100 uniformed police, see the impact on hiring of illegals in the northwest orchard operations where employees are audited for immigration status by ICE.

The severity of the penalty is a key. Make the fines big enough the local jurisdictions will enforce the law. Make the penalty a felony that can’t be pled down and you have a huge impact on the two industries that tend to employ the largest number of illegals: hospitality and construction. In both industries licenses to do business are required and with a felony you can’t get a liquor license or a contractor’s license. Combined with making the fines a matter of personal liability to the owner/senior local officer and employment of illegals will come to a screeching halt and there won’t be a line of legal aid lawyers or DoJ attorneys standing outside the federal court waiting to sue.

Bottom line, no jobs and no ability to rent housing, illegals will find a more hospitable place to live. No arrests required, at least in Arizona. We make the problem – and the cost – California’s or Colorado’s or Utah’s or New Mexico’s. Or heck, maybe even Mexico’s.

We need to think about the result we want to accomplish at the state level when dealing with these issues and plan accordingly. Avoiding federal court should be an objective when possible, and in the case of SB1070 it was absolutely possible.